[Introduced January 14, 2011; referred to the Committee on
Government Organization; and then to the Committee on Finance.]

____________

A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §5-30-1, §5-30-2, §5-30-3, §5-30-4, §5-30-5, §5-30-6, §5-30-7 and §5-30-8, all
relating to the establishment of an Equal Employment
Opportunity Office within the Office of the Governor;
providing public policy declarations; providing definitions;
appointment of director; staffing; duties and
responsibilities; investigations of noncompliant agencies;
authority for proposal of rules; and requirement for annual
reports.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §5-30-1, §5-30-2, §5-30-3, §5-30-4, §5-30-5, §5-30-6, §5-30-7 and §5-30-8, all to read
as follows:

ARTICLE 30. WEST VIRGINIA EQUAL EMPLOYMENT OPPORTUNITY OFFICE.

§5-30-1. Public policy; equal employment opportunity.

(a) It is declared to be in the best interest of the State of
West Virginia to ensure that historic and emerging patterns of sex
and racial discrimination are eliminated and that each agency
pursue a course of action in all areas of its operation to ensure
that all citizens are provided with fair and equal opportunities
for employment and advancement with the State of West Virginia.
Such prohibited discrimination includes that of race, color,
religion, national origin, age, sex, gender, marital status,
veteran status, physical or mental disability or any other ground
prohibited pursuant to the provisions of article eleven, chapter
five of this code, as pertaining to state employees.

(1) Hiring, placement, upgrading, transfer, or demotion of
state employees;

(2) Recruitment, advertising, or solicitation for employment;

(3) Treatment during employment;

(4) Wages, rates of pay or other forms of compensation;

(5) Selection for training;

(6) Layoff, termination, or reinstatement; and

(7) Any other terms or conditions of employment.

§5-30-2. Definitions.

As used in this article, unless the context otherwise
requires:

(1) "Director" means the Equal Employment Opportunity
Director;

(2) "Affirmative action" means a deliberate and sustained
effort to identify and eliminate barriers to employment and
advancement which may unlawfully discriminate on a ground
prohibited pursuant to the provisions of article five, chapter
eleven. The ultimate goal is to achieve, at all levels, a state
government workforce which is representative of the state working
population. The composition of the state working population shall
be determined annually through reports of the United States
Department of Labor. Such a goal is to be an integral part of every
aspect of personnel policy;

(3) "Agency" means any administrative unit of state government
or any political subdivision thereof, including any authority,
board, bureau, commission, committee, council, division, section or
office;

(4) "Appointing authority" means a person or group of persons
authorized by state law or within an agency to make appointments to
positions in the classified or classified-exempt service;

(5) "Equal employment opportunity" means the right of all
persons to work, to be compensated and to advance on the basis of
merit and ability without regard to race, color, religion, national
origin, age, sex, gender, marital status, veteran status, physical
or mental disability, or membership in any other organization , or
any other ground prohibited pursuant to the provisions of article
eleven, chapter five of this code, and to work in an environment
free from illegal hostility, discrimination, harassment or
retaliation or any other unlawful adverse employment action;

(6) “Discrimination” means any direct or indirect act or
practice of exclusion, distinction, restriction, limitation,
refusal, denial or any other act or practice of differentiation or
preference in the treatment of a person or persons resulting from
their being members of a protected class based upon race, color,
religion, national origin, age, sex, gender, marital status,
veteran status, physical or mental disability, or any other ground
prohibited pursuant to the provisions of article eleven, chapter
five of this code;

(a) There is hereby created the Equal Employment Opportunity
Office within the Office of the Governor. The Equal Employment
Opportunity Office is responsible for assuring compliance with the
requirements of all state and federal requirements for affirmative
action and equal employment opportunity, and shall provide
training, counseling and technical assistance as may be requested
by all state agencies as is necessary to comply with the intent of
this article.

(b) The Equal Employment Opportunity Office shall issue any
guidelines, directives or instructions that are necessary to
effectuate its responsibilities under this article, and is
authorized to investigate allegations of prohibited discrimination,
harassment or retaliation and direct corrective action to any such
action substantiated.

(c) Nothing in this article affects the jurisdiction or
authority of the West Virginia Human Rights Commission.

(a) The Governor shall appoint the Equal Employment
Opportunity Director with advice and consent of the Senate, who
shall serve at the will and pleasure of the Governor.

(b) The director shall be a qualified administrator as
reasonably determined by the Governor, and shall be a member in
good standing of the West Virginia State Bar.

(c) The director shall be given all necessary cooperation to
ensure that there is compliance with all state agency equal
employment opportunity programs, and shall be provided with
resources commensurate with the responsibilities of the office.

(2) Propose legislative rules for legislative approval in
accordance with article three, chapter twenty-nine-a of this code
in order to carry out the provisions of this article;

(3) Provide training, counseling and technical assistance to
the agencies on equal employment opportunity matters and in the
development of their affirmative action plans;

(4) Review agency programs and plans and direct modification
to ensure the effectiveness of the programs and the plans;

(5) Monitor the progress of agency programs and plans by
establishing reporting forms;

(6) Establish and review the annual affirmative action reports
of the agencies;

(7) Monitor the progress of the agency programs and include
such progress in an annual report to the Governor;

(8) Recommend legislation, when necessary, in order to make
changes in the program;

(9) Serve as liaison between the state and federal compliance
agencies;

(10) Plan, coordinate and conduct training in equal employment
opportunity topics, including, but not limited to, workplace
discrimination, harassment and retaliation for all segments of the
state government workforce;

(11) Coordinate the activities of the designated affirmative
action and equal employment opportunity representative or
representatives in each agency;

(12) When requested by an employee or an agency, investigate
any complaints involving unfair treatment, terms and conditions of
employment, or perceived acts or policies involving discrimination,
harassment or retaliation;

(13) Conduct contract compliance reviews on all vendors,
grantees, and contractors doing business with the state who have
programs or projects which are funded ,in whole or in part, by
state or federal funds;

(14) Coordinate duties and responsibilities with the State
Americans with Disabilities Coordinator, the Women's Commission and
the Equal Pay Commission;

(15) Act as a repository for all agency equal employment
opportunity discrimination, harassment or retaliation claims,
investigations and reports;

Each agency shall submit an affirmative action plan for that
agency to the office for review, and shall work with the director
to ensure the effectiveness of the plan. Each agency shall update
its plan annually based on guidelines developed by the director.

Each agency shall have one or more individuals who are
designated as agency equal employment opportunity representatives
for the agency who shall act as officers, coordinators or
counselors to direct and coordinate equal employment opportunity
and affirmative action efforts.

§5-30-7. Authorization by director to initiate investigations
against noncompliant agencies; report of such action
to the Governor; establishment of timelines for
compliance; notice of employee rights.

(a) The director is authorized to initiate investigations
against any agencies, directors, or employees of any department or
division within state government, excluding the legislative branch,
who or which fail to comply with the requirements of this article
or who or which fail to meet the standards of good faith effort,
reasonable basis, or reasonable action, as defined in guidelines
promulgated by the Equal Employment Opportunity Commission as set
forth in 29 C.F.R. §1607.

(b) Whenever the director initiates an investigation, he or
she shall cause to be issued and served in the name of the Equal
Employment Opportunity Office, a written notice, together with a
copy of the alleged noncompliance, requiring that the agency,
director, agent, or employee respond to the director and to the
Governor, and setting forth the time frames for correction of the
failure to comply.

(c) The director must give notice to all state employees of
their rights pursuant to applicable sections of this code.

§5-30-8. Employment policies for state employees.

(a) Each appointing authority shall review the recruitment,
appointment, assignment, upgrading, and promotion policies and
activities for state employees without regard to race, color,
religion, sex, gender, age, national origin, marital status,
veteran status, physical or mental disability, or any other ground
prohibited pursuant to the provisions of article eleven, chapter
five of this code;

(b) Special attention shall be given to the parity of classes
of employees doing similar work and the training of supervisory
personnel with regard to equal employment opportunity and
affirmative action principles and procedures;

(c) Annually, each appointing authority shall include in its
expenditure schedules any necessary programs, goals and objectives
that shall improve the equal employment opportunity and affirmative
action aspects of the agency’s employment policies; and

(d) Each appointing authority shall make an annual report to
the Equal Employment Opportunity Office on persons in the protected
classes enumerated herein hired, disciplined, terminated, promoted,
transferred, and vacancies occurring within their department.

NOTE: The purpose of this bill is to establish an Equal
Employment Opportunity Office within the Office of the Governor.

This article is new; therefore, strike-throughs and
underscoring have been omitted.

This bill was recommended for introduction and passage during
the 2011 Regular Session of the Legislative Oversight Committee.